Supreme Court of Canada Dismisses Toronto Real Estate Board’s Leave to Appeal – Competition Tribunal Must Reconsider Commissioner’s Application

Earlier this year, the Federal Court of Appeal (FCA) ruled that the Competition Tribunal (Tribunal) erred in dismissing the abuse of dominance case brought by the Commissioner of Competition (Commissioner) against the Toronto Real Estate Board (TREB). The FCA’s ruling hinged on its finding that the Tribunal incorrectly interpreted its 2006 decision in Canada (Commissioner of Competition) v. Canada Pipe Co. and, consequently, the application of the abuse of dominance provisions of the Competition Act (Act). Accordingly, the FCA sent the Commissioner’s application back to the Tribunal for redetermination.

For more detail on the FCA decision and the original Tribunal decision, please see our earlier articles here and here.

Following the FCA’s decision, TREB filed an application to the Supreme Court of Canada (SCC) for leave to appeal the decision of the FCA.

On July 24, 2014, the SCC dismissed TREB’s application. This means that the Tribunal must now reconsider the Commissioner’s application against TREB.

In its press release, the Competition Bureau states “[w]e continue to believe that prohibiting TREB’s anti-competitive practices and allowing real estate agents to provide the services of their choice is the only way to ensure that consumers and real estate agents alike can benefit from increased competition for residential real estate brokerage services in the Greater Toronto Area.”

TREB’s reported statement is that “the Commissioner of Competition is persisting in its efforts to erode the personal privacy and contractual safeguards afforded by the MLS® system. TREB will continue to work to protect the personal information entrusted to it and its members by the general public, while it strives always to do what it can to ensure a highly competitive environment for real estate professionals in the GTA.”

McCarthy Tétrault Notes

The FCA decision in TREB casts uncertainty over who can be the subject of an abuse of dominance application by the Commissioner. It suggests, at a minimum, that trade associations can be targets of abuse of dominance cases. The uncertainty created by this decision is troublesome, particularly in view of the fact that administrative monetary penalties (AMP) of up to $10 million are now available in abuse of dominance cases. On its reconsideration of the case, it would be beneficial for the Competition Tribunal to provide guidance on this issue.